L v F

JUDGMENT

JUDGMENT: Re L (Relocation: Second Appeal)

Lord Justice Peter Jackson:

Summary

This is an appeal from a decision of Ms Justice Russell, by which she allowed an appeal from a relocation decision of Her Honour Judge Owens in the Family Court at Oxford. It is the first occasion on which the Court of Appeal has considered a second appeal from the High Court since the introduction in October 2016 of the new routes of appeal in private law family cases. Permission to appeal was granted by Macur LJ on 18 September 2017 on the basis of what she described as flaws in the appeal judgment that provided a compelling reason for this court to hear the case.

The task of the High Court when acting as an appellate court in family proceedings is governed by Rule 30.12 of the Family Procedure Rules 2010 , which is equivalent to Rule 52.11 of the Civil Procedure Rules 1998 as it applies to the Court of Appeal. Rule 30.12 reads:

“ Hearing of appeals

30.12 — (1) Every appeal will be limited to a review of the decision of the lower court unless—

(a) an enactment or practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive—

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in that party’s appeal notice unless the appeal court gives permission.”

So, in normal circumstances an appeal is to be a review of the decision of the lower court, based on the evidence available to that court and circumscribed by the matters raised in the notice of appeal. The appeal court will allow the appeal where the lower court’s decision is wrong, or where it is unjust because of a serious procedural or other irregularity.

In the present case, my conclusion is that the decision of HHJ Owens was not wrong or unjust in any way. Instead, the decision on appeal was regrettably both wrong and unjust because of serious procedural irregularity. The main basis on